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65 Cards in this Set

  • Front
  • Back
Voice authentication
Any person familiar with speaker's voice, no matter when they became familiar.
When must expert be required.
When scientific, technical, or other specialized knowledge is required to render an opinion. (speed of moving cars does NOT require and expert)
Attempt to bribe a witness
Admissible as an admission of a party opponent.
Can P bring up a perjury conviction that is 11 years old?
No, P can inquire into prior convictions regarding dishonesty or false statement if they are less than 10 years old.
Past recollection recorded
1) witness at one time had personal knowledge of the facts recited in the writings
2) the witness was made by or under the direction of the witness or has been adopted by her.
3) The writing was timely made when the matter was fresh in the mind
4) the writing is accurate.
5) the witness has insufficient recollection to testify fully.
Spousal privilege
Either spouse has the privilege to refuse to disclose, and prevent the other from disclosing, a confidential information made WHILE they were husband and wife. Divorce won't terminate it retroactively.
Can learned treatises be used for impeachment or substantively?
Both.
Who can authenticate a photo?
A witness who identifies the photograph is familiar with the scene or object depicted. Not necessary to call the photographer.
What information does the physician-patient privilege protect?
Only information that is necessary to enable the physician to act in her professional capacity. IF it's nonmedical, it's not privileged. The privilege does not apply where the P has put the physical in issue by suing for personal injuries.
Can a guilty plea be admissible in a future trial?
Yes, as an admission by a party opponent. A plea of guilty to a traffic infraction for instance, is a formal judicial admission. The fact has to be relevant to the future suit.
What are the reasons that we might exclude prejudicial relevant evidence?
1) Unfair prejudice
2) Confusion of the Issues
3) Misleading the jury
4) Undue Delay
5) Waste of time
6) Cumulative.
When are offers to pay medical expenses admissible?
Generally not admissible, but it is accompanied by a naked admission of fact, the admission may be admitted.
A misdemeanor conviction and hearsay
A misdemeanor conviction is hearsay and not admissible.
T or F A jury is NOT required to accept judicial notice in a civil case?
F
In what way is a polygraph test excluded?
403
T or F A doctors visit for the purpose of trial falls under the attorney client privilege.
T
T or F Agent admissions are attributable to the principle
T
T or F Testimony given at another trial is only admissible if the parties are the same.
T
Spousal privilege where one spouse tells someone and waives the privilege and the other spouse is deceased.
Then the other spouse cannot invoke the privilege.
HABIT
A persons REGULAR RESPONSE to a set of circumstances.
For what reason can you talk about subsequent remedial measures
To show ownership and control
Impeachment (I couldn't have made this any safer)
WHAT TYPES OF SETTLEMENTS ARE NOT ADMISSIBLE
1) actual compromises
2) offers to compromise
3) withdrawn pleas
4) nolo contendere

*There must be a claim pending
*The claim must be disputed
WHAT TYPES OF OFFERS TO PAY HOSPITAL EXPENSES ARE ADMISSIBLE?
admissions that are part of a naked offer to pay hospital deals. (naked means it's not a settlement discussion)
Authentication of Ancient Documents
1) 20 years old
2) Such condition to be free from suspicion
3) Found in a place where the writing in likely to be kept.

*applies to all writings
Authentication by reply letter doctrine
A writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author.
Authentication of photos
Admissible if identified by a witness familiar with the scene.
Authentication of Unattended Camera
Showing that the camera was properly operating at the relevant time and that the photo was developed from film obtained from the camera
Authentication of X-Rays, Electrocardiograms etc...
Must be shown that the process used is accurate, the machine was working, the operator was qualified and a custodial chain.
Voice authentication
Anyone that has heard the voice at any time, even after the litigation has begun
Telephone conversation authentication
1) recognized the parties voice
2) the speaker had knowledge of certain facts that only he would have
3) he called the particular person's number and a voice answered as that person or that person's residence; OR 4) he called a business and talked with person answering phones about matters relevant to the business.
Self authenticating documents
1) Certified public records
2) official publications
3) newspapers and periodicals
4) commercial paper
5) certified business records
What are the 4 parts to competency?
1. Observe something
2. Remember it
3. Communicate it
4. Take an oath
Past Recollection Recorded
1) The witness at one time had personal knowledge
2) The writing was made by the witness or adopted.
3) The writing was made while fresh in mind
4) The writing is accurate
5) The witness has insufficient recollection now.
*The writing may be read into evidence.
Prior Consistent Statement
To rebut an express or implied charge of recent fabrication or improper influence or motive.
Spousal Immunity Privilege
1) Valid Marriage at the time of trial
2) Protects against any and all testimony
3) Holder of privilege is witness spouse not party spouse
4) Applies only in a criminal case.
Confidential Marital Communications Privilege
1) Married at the time of protected communication
2) Protects only confidences not all testimony
3) Holder of privilege is either spouse
4) Privilege applies to all cases
What is the standard of review for a factual issue in Utah?
"clearly erroneous" or "abuse of discretion" State v. Pena
What is the standard of review for a legal issue in Utah?
"correctness" or "de novo"
Harmless error 103(a)
A substantial right of the party has to be affected.
Rule 106
When a writing is introduced by a party, the adverse party may require any other part which are to be considered contemporaneously in fairness.
Rule 201
Judicial Notice: Facts not subject to reasonable dispute because 1) generally known w/in terrotorial jurisdiction 2) verifiable certainty.
Rule 401
Relevant evidence means evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 402
Relevant evidence generally admissible; irrelevant evidence inadmissible.
Rule 403
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the DANGER of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

a) Favors Admitting Evidence. FRE weighs in favor of admitting evidence at trial. According to the language, unfair prejudice must substantially outweigh its probative value before the evidence can be excluded under this rule. Thus, even if unfair prejudice does outweigh its probative value, it will still be admitted unless it substantially outweighs it. In close cases, evidence is admitted instead of excluded.
. Generally, there are three requirements which must be present to preserve an erroneous evidentiary ruling by the court for appeal:
the ruling by the court must (1) affect a substantial right of the party, the attorney must have made a (2) timely objection, and the objection must (3) appear on the record.
Objections when there are multiple parties
When there are co-parties to a lawsuit and one party objects to an evidentiary matter, courts are split on whether all parties must make the objection to preserve it for all parties, or whether all parties can rely on a single party’s objection.
Many times a party will introduce a writing or statement that is incomplete, only a portion of the complete document or statement. In such a situation...(FRE 106)
the adverse party may require that the remaining portions of the writing or statement, or any other writing or statement also be admitted for the purpose of putting the partial writing or statement into context.
1. Two Requirements:
a) Adverse party must request it,
b) Fairness requires that it be considered
Presumption of Competency—FRE 601
The FRE provide for a presumption that all persons are competent to be a witness at trial unless the rules otherwise provide.
b) Elements for Competency. There are four elements which must be met for a witness to be presumed competent to testify.
(1) Must have personal knowledge—FRE 602
(2) Must remember what they perceived.
(3) Must communicate their testimony.
(4) Must take oath or affirmation to tell truth—FRE 603. It only need be shown that the witness understands their duty to testify truthfully in the trial.
The juror may be called to testify as upon inquiry of the validity of the verdict for matters relating to:
(a) Extraneous prejudicial information,
(b) Outside influence,
(c) Pre and post deliberative conduct.
Many state have “dead man statutes” that declare a person not competent to testify as a witness if their testimony relates to a transaction that occurred with a dead person and that testimony is contrary to the dead persons representative. The following three elements must be met to exclude evidence under the typical dead man statute:
(1) Witnesses testimony relates to a transaction that occurred with a person now dead;
(2) The witness has a personal stake in the outcome of the case; and
(3) The witnesses testimony is contrary to the interests of the dead persons representative
B. Exclusion of Witnesses from Trial—FRE 615. The FRE provide that witnesses who are to be called to testify at trial may be excluded from being present during the trial until they are called to testify to prevent collusion in testimony between witnesses.
1. Court May Remove Witnesses. The court may upon its own motion require that witnesses be excluded so as not to hear the testimony of other witnesses at trial.
2. Parties May Remove Witnesses. The parties to the suit may request that witnesses be excluded so as not to hear the testimony of other witnesses.
Persons Who Cannot Be Excluded. The following persons cannot be excluded from the trial by either the parties or the court:
a) A party (human being) to the litigation;
b) An officer or employee of non-human party (corporation) to litigation that is party’s representative;
(1) One person only: This has been interpreted by courts to allow one representative to be present.
c) A person essential to presentation of party’s case;
(1) Examples: expert witness or FBI agent in criminal prosecution.
d) Any person authorized by statute to be present.
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The juror may be called to testify as upon inquiry of the validity of the verdict for matters relating to:
(a) Extraneous prejudicial information,
(b) Outside influence,
(c) Pre and post deliberative conduct.
Many state have “dead man statutes” that declare a person not competent to testify as a witness if their testimony relates to a transaction that occurred with a dead person and that testimony is contrary to the dead persons representative. The following three elements must be met to exclude evidence under the typical dead man statute:
(1) Witnesses testimony relates to a transaction that occurred with a person now dead;
(2) The witness has a personal stake in the outcome of the case; and
(3) The witnesses testimony is contrary to the interests of the dead persons representative
B. Exclusion of Witnesses from Trial—FRE 615. The FRE provide that witnesses who are to be called to testify at trial may be excluded from being present during the trial until they are called to testify to prevent collusion in testimony between witnesses.
1. Court May Remove Witnesses. The court may upon its own motion require that witnesses be excluded so as not to hear the testimony of other witnesses at trial.
2. Parties May Remove Witnesses. The parties to the suit may request that witnesses be excluded so as not to hear the testimony of other witnesses.
Persons Who Cannot Be Excluded. The following persons cannot be excluded from the trial by either the parties or the court:
a) A party (human being) to the litigation;
b) An officer or employee of non-human party (corporation) to litigation that is party’s representative;
(1) One person only: This has been interpreted by courts to allow one representative to be present.
c) A person essential to presentation of party’s case;
(1) Examples: expert witness or FBI agent in criminal prosecution.
d) Any person authorized by statute to be present.
There are many ways an attorney can refresh his witnesses memory:
a) Ask court for a recess;
b) Ask a leading question;
c) Show witness anything (need not be admissible. If the adverse party requests, he can have the court enter the writing used to refresh the witness’s testimony into evidence. evidence nor is court’s permission required).
2. Scope of Cross-examination—FRE 611(b). When an attorney is cross-examining a witness, the FRE limits the questions to two areas:
a) What was said by witness on direct examination, and
b) The witnesses credibility.
(1) Note: When a witness takes the stand, they place their credibility in issue, they do not place their character in issue.
a) Direct-Examination. Generally leading questions should not be used, but they may be used in the following limited circumstances:
(1) Only as necessary to develop the witnesses testimony (example is to refresh the memory);
(2) Against a hostile witness;
(3) Against an adverse party or a witness identified with one;
(4) Communication problems;
(5) Child witness;
(6) Biased witness.
There are two instances in which an adjudicative fact can be (or may be required to be) judicially noticed by the court:
A. Facts that are generally known within the trial court’s territorial jurisdiction
B. Facts that can be accurately and readily determinable by sources whose accuracy cannot be reasonably questioned.
The court must take judicial notice of an adjudicative fact when:
a) Party requests court to take judicial notice; and
b) Party supplies court with necessary information.
Consequences of Judicial Notice.
1. Civil Trials. The judicially noticed fact is established as true, and jury must accept fact as being conclusively established.
Essential Element Character Evidence—FRE 405(b).
If the defendant’s character is an essential element of the plaintiff’s cause of action, then propensity character evidence about the defendant is allowed and is admissible.